Update on Five Paid Sick Days Under Employment Standards Act

The New Year brought employers in British Columbia a requirement to provide their employees with five paid sick (illness or injury) days. Since the requirement came into effect on January 1, 2022, we have been fielding questions about the implementation of the five paid sick days in the workplace. Below we highlight some of our more frequently asked questions:

• Currently, the Employment Standards Act (ESA) does not provide for proration of the leave entitlement for part-time employees or employees hired for temporary periods of less than a year. The new paid sick leave obligations apply equally to part-time, temporary, or casual employees.
• The entitlement begins 90 days after an employee is hired, and runs the course of their employment year, based on their start date. Sick days cannot be carried over to the next employment year if they are unused within the employment year.
• The Employment Standards Regulation and the ESA do not restrict how or when the sick days are to be used. While there was previously paid sick time for specific COVID-related reasons under the ESA, this was repealed when the new entitlement came into effect on January 1, 2022. The sick days can now be used towards any five days the employee is sick within the employment year. Employers are permitted to request reasonably sufficient proof of the employee’s illness. Examples from the non-binding guidelines include a receipt from a drugstore or pharmacy, a medical bracelet from a hospital or a note from a medical professional.
• Wages for the purposes of calculating an “average day’s pay” include salary, commission, statutory holiday pay, paid vacation and paid sick days, but not overtime.
• The formula for the “average day’s pay” is the same as ESA statutory holiday pay, which uses a 30 calendar day period and divides the amount paid (excluding overtime) by the number of days worked. For example, an employee who works 20 days in a 30-day period and earns $4,000 (excluding overtime), would have an average day’s pay of $200, less statutory deductions.
• Unionized employers are exempt from the new five paid sick days, if their collective agreement benefits “meet or exceed” them.

Please contact our office if you have questions.

Michael R. Kilgallin is a lawyer at Roper Greyell LLP, where he provides advice to employers on employment, labour relations and human rights issues in the workplace.  He can be reached at mkilgallin@ropergreyell.com.

Janna Crown is a lawyer at Roper Greyell LLP, practicing in all areas of workplace law, including human rights, labour law, and WorkSafeBC matters.  She can be reached at jcrown@ropergreyell.com.  For more information about Michael, Janna, and the rest of the Roper Greyell team, please visit www.ropergreyell.com.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein.  The article is for general information purposes only and does not constitute legal advice.